How Long is Forever This Time? The Broken Promise of Bankruptcy Trusts

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1 How Long is Forever This Time? The Broken Promise of Bankruptcy Trusts S. TODD BROWN INTRODUCTION Imagine a Medicare system in which the medical providers that submit the most reimbursement claims determine the criteria for reimbursement, have the power to veto any plan for auditing the claims they submit, and effectively control the appointment of those responsible for overseeing reimbursements and audits. Would claim criteria be designed to strike an optimal balance between excluding specious claims and managing administrative costs, or would the criteria focus on making the process most efficient for medical providers? Would we see more robust audits, or would they largely abandon claim audits? The preceding hypothetical mirrors the manner in which bankruptcy trusts are established. Section 524(g) of the Bankruptcy Code authorizes the entry of an injunction that channels all of a debtor s asbestos-related liabilities to a bankruptcy trust, which is established by the debtor to pay all valid current and future asbestos claims. Due to an oversight in the design of section 524(g), however, current claimants enjoy the power to veto any plan. 1 Given this power, the lawyers who speak for the largest blocks of current claimants have the power to dictate trust claim Associate Professor, SUNY Buffalo Law School. The Author wishes to thank Christine Bartholomew, Mark Behrens, Kirk Hartley, Peter Kelso, Stuart Lazar, Chris Pashler, Marc Scarcella, Jack Schlegel, and Jim Wooten for their insight and input concerning this project. Special thanks to my research assistant, Logan Geen, for his assistance in this project. Any errors or omissions, of course, are the author's own. 1. As is more fully outlined in Parts I.B.3 and II, this veto power stems from the requirement that at least 75% of current claimants vote in favor of the plan in order for the channeling injunction to be issued. S. Todd Brown, Section 524(g) Without Compromise: Voting Rights and the Asbestos Bankruptcy Paradox, 2008 COLUM. BUS. L. REV. 841, , (2008) (explaining how the design of section 524(g) provides lead plaintiffs counsel with an unassailable veto power over asbestos bankruptcy cases). 537

2 538 BUFFALO LAW REVIEW [Vol. 61 qualification criteria and settlement values, control key appointments, and structure trust governance provisions to preserve their influence over the trusts post-confirmation. 2 The danger in this design is that current claimants will insist upon relaxed standards and inflated payments for their own claims and leave little for unknown future victims. 3 Ensuring equality of distribution to all claimants who are bound by the plan of reorganization current and future is both a central policy of the Bankruptcy Code generally 4 and the central purpose 5 of section 524(g) specifically. To that end, section 524(g) requires the appointment of an independent legal representative for future victims. 6 Moreover, in order to issue the channeling injunction, the district court must first determine that the injunction is fair and equitable to future victims 7 and that the trust will value, and be in a financial position to pay, present claims and future demands that involve similar claims in substantially the same manner. 8 Notwithstanding the statutory protections for future victims, the available public data shows that few trusts that have processed their initial claims remain in position to ensure equitable payments to future victims. Payments from the most recently established trusts declined as much 2. See infra notes and accompanying text. 3. As the Third Circuit recently observed, the trusts place the authority to adjudicate claims in private rather than public hands, a difference that has at times given us and others pause, since it endows potentially interested parties with considerable authority. In re Federal-Mogul Global Inc., 684 F.3d 355, 362 (3d Cir. 2012). 4. In re W.R. Grace & Co., 475 B.R. 34, (Bankr. D. Del. 2012) (quoting In re Combustion Eng g Inc., 391 F.3d 190, 239 (3d Cir. 2004)) ( This emphasis on the equality of distribution among creditors is highlighted within the requirements of 11 U.S.C. 524(g) and 1123(a)(4) of the Code. ). 5. In re Plant Insulation Co., 469 B.R. 843, 860 (Bankr. N.D. Cal. 2012) ( The central purpose of section 524(g) is the equal treatment of present and future asbestos claims. This policy is enunciated clearly in both the language and legislative history of the statute. ) U.S.C. 524(g)(4)(B)(i) (2006) U.S.C. 524(g)(4)(B)(ii) U.S.C. 524(g)(2)(B)(ii)(V).

3 2013] BANKRUPTCY TRUSTS 539 as 90% following the initial claim processing period, 9 and the median payment percentage 10 across the trusts surveyed for this paper has reached an all-time low of 14%. 11 Roughly two-thirds of the trusts have reduced payments to claimants at least once since 2010, resulting in per-claim payment reductions of up to 93.33% in that time. 12 In sum, although trusts are established on the promise to pay all current and future victims equitably, this promise has already been broken at all but a few trusts. The threat to future victims has become pressing given the dramatic growth of the bankruptcy trust system. To date, nearly sixty bankruptcy trusts have been established or are in the process of being established. 13 These trusts distributed more than $14 billion to claimants from 2006 through 2011, leaving only $18 billion in assets 14 to satisfy the claims submitted to them over the next four decades See Notice to Holders of TDP Determined Lummus Asbestos PI Trust Claims (June 13, 2011), available at C_Holders.pdf (reducing payment percentage from 100% for claims processed through August 2, 2010, to 10% for newly filed claims). 10. The payment percentage is the amount of a claim s assigned value that is actually paid by the trust. See discussion infra Part I.C See infra Appendix A (Payment Percentages). 12. Id. (twenty-two of the thirty-two trusts included in the study paying at historic lows). One trust that has not reduced its initial payment percentage, Combustion Engineering, was the product of a pre-packaged bankruptcy settlement that overtly front-loaded payments pursuant to a two-tier trust. See infra notes and accompanying text. If these payments are taken into account, twenty-three of the thirty-two trusts studied are currently paying claims at historically low levels. 13. U.S. GOV T ACCOUNTABILITY OFFICE, ASBESTOS INJURY COMPENSATION: THE ROLE AND ADMINISTRATION OF ASBESTOS TRUSTS 3 (2011) [hereinafter GAO REPORT]. 14. Marc C. Scarcella & Peter R. Kelso, Asbestos Bankruptcy Trusts: A 2012 Overview of Trust Assets, Compensation & Governance, MEALEY S ASBESTOS BANKR. REP., June 2012, at 1, 2. This amount excludes the roughly $12 billion set aside for trusts that have not yet become active. Id. 15. See AM. ACAD. ACTUARIES, CURRENT ISSUES IN ASBESTOS LITIGATION 2 (2006) ( Although occupational exposure to asbestos was significantly reduced following the establishment of Occupational Safety and Health Administration (OSHA) requirements in the early 1970s, asbestos diseases are expected to manifest at least through 2050 in the United States, and longer in several other countries where high exposure levels continued longer. ).

4 540 BUFFALO LAW REVIEW [Vol. 61 As more defendants leave the tort system and establish bankruptcy trusts, future victims will increasingly look to the trust system for payment. If current trends and practices hold, however, bankruptcy trusts will pay future victims a fraction of the amount paid to initial trust claimants. This Article addresses some of the reasons for this failure and outlines measures for improving trust governance and performance. Part I provides a basic summary of process for establishing a bankruptcy trust under section 524(g) and an overview of features common across the trusts. Part II outlines the misalignment of private incentives and the policy objectives of section 524(g) and identifies specific resulting weaknesses in trust criteria and quality controls. Part III analyzes the extent to which the prevailing trust model undermines future victims interests, some common defenses of the bankruptcy trust system, and whether future trusts that follow the same model can be confirmed as consistent with the dictates of due process and the express terms of section 524(g). Part IV advances a model for streamlining and improving oversight of bankruptcy trust submissions and payments, which, in turn, should better protect future victims interests in existing and future trusts. I. THE ORIGIN, PURPOSE, AND STRUCTURE OF BANKRUPTCY TRUSTS A. The Objectives of the Bankruptcy Trust System The twin objectives of bankruptcy law maximizing the pool of assets available for distribution to creditors and ensuring that this distribution is equitable are reflected in every Anglo-American bankruptcy law dating back to the Statute of Elizabeth. 16 Even the decision to place the exclusive power to adopt a uniform national bankruptcy law with the federal government through the Bankruptcy Clause had its origins in the fear that individual states would pass laws allowing inequitable discharges and distributions that favored their citizens ahead of the , 13 Eliz., c. 5, 1 (Eng.) (prohibiting transfers made with the [i]ntent to delaye hynder or defraude Creditors and others of theyr juste and lawfull Actions ).

5 2013] BANKRUPTCY TRUSTS 541 citizens of other states. 17 The substantive provisions of the modern Bankruptcy Code including the automatic stay, the power to avoid preferences and fraudulent conveyances, and the absolute priority rule work collectively to maximize assets and ensure equitable distributions to creditors. Procedurally, federal bankruptcy law advances these objectives by empowering creditors to protect their interests, both individually and collectively, no matter how large or small their individual stakes in the case. All creditors have the right to object to proposals that affect their interests 18 and vote on any proposed reorganization plan. 19 The Bankruptcy Code also contemplates independent appointments of trustees, examiners and official creditor committees to protect the interests of all creditors against encroachment by repeat players and more influential creditors. 20 This procedural design works relatively well in the typical Chapter 11 corporate restructuring of the debtor s current assets and liabilities. What if the ability to reorganize hinges upon the debtor s ability to address the claims of not only current creditors but also currently unknowable future creditors? These creditors cannot receive sufficient notice to satisfy due process, 21 and it is unlikely that their interests will be fairly represented by other 17. See, e.g., JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, 1102 (1833), available at U.S.C. 1109(b) (2006) U.S.C. 1126(a). 20. See 11 U.S.C With the Third Circuit s recent rejection of Avellino & Bienes v. M. Frenville Co. (In re M. Frenville Co.), 744 F.2d 332 (3d Cir. 1984), it appears well settled that asbestos personal injury claims qualify as claims subject to discharge under the Bankruptcy Code. Jeld-Wen, Inc. v. Van Brunt (In re Grossman s Inc.), 607 F.3d 114, (3d Cir. 2010) (en banc). Nonetheless, claims may be discharged in bankruptcy only to the extent consistent with due process, and victims that have no reason to be aware of their potential asbestos personal injury claims against a debtor are unlikely to have a sufficiently colorable claim at the time of discharge or knowledge of the need to protect their interests to satisfy due process. Id. at

6 542 BUFFALO LAW REVIEW [Vol. 61 parties to the case. 22 Yet forcing the debtor into liquidation as may be required if these future creditors claims cannot be discharged in the reorganization plan may ensure that they will receive nothing from the bankruptcy estate. 23 The bankruptcy trust model was adopted in the first asbestos bankruptcies to resolve this problem. This model included features that provided courts with a basis for binding future victims notwithstanding their absence and to protect them from overreaching by other parties in interest. 24 Consistent with other proceedings in which interested parties are unable to speak on their own behalf, courts appointed legal representatives to speak for future victims. 25 These representatives assisted current parties in interest in the negotiation of the debtors reorganization plans, which included the establishment of bankruptcy trusts funded by the debtors securities, insurance recoveries, and other assets. 26 To ensure that the debtors 22. In re Amatex Corp., 755 F.2d 1034, (3d Cir. 1985) (discussing future claimants conflicting interests with the debtor and current asbestos creditors). Similar concerns about the inherent conflicts of interests between current and future victims animated the Supreme Court s rejection of asbestos class action settlements. Ortiz v. Fibreboard Corp., 527 U.S. 815, 856 (1999); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 (1997). 23. See In re Plant Insulation Co., 469 B.R. 843, (Bankr. N.D. Cal. 2012). This concern is reflected in Judge Lifland s analysis of the due process question in the Johns-Manville bankruptcy: Finally, it is worthwhile to remember who due process will serve in this reorganization. The goal of the Plan and the purpose of the Injunction is to preserve the rights and remedies of those parties, who by an accident of their disease cannot even speak in their own interest. The impracticable, if not impossible version of due process envisioned by the Objectors would effectively destroy these rights and remedies. Theories and standards of due process are nothing more than the human effort to make the inchoate notions of justice and equity real and tangible to parties who stand before a court of law. The Objectors due process, which would deny asbestos victims justice and equity, is not a due process at all. In re Johns-Manville Corp., 68 B.R. 618, 627 (Bankr. S.D.N.Y. 1986). 24. See Brown, supra note 1, at See Frederick Tung, The Future Claims Representative in Mass Tort Bankruptcy: A Preliminary Inquiry, 3 CHAP. L. REV. 43, 72 (2000). 26. See id.

7 2013] BANKRUPTCY TRUSTS 543 could satisfy the requirements for confirmation, 27 the courts issued permanent injunctions channeling all future tort claims against the debtor to the trusts. 28 Although this process was controversial, it reflected a pragmatic expansion of the basic principles of Chapter 11 generally preservation of the going concern value of the debtor and equitable distribution to creditors with similar rights to include future asbestos personal injury victims. An immediate problem with this approach was its uncertain foundations in the Bankruptcy Code. Nothing in the code at the time expressly authorized the appointment of a legal representative for future victims, the inclusion of future claims in any distribution scheme, or the issuance of an injunction that limited future plaintiffs recovery rights to the bankruptcy trust. 29 This uncertainty played a significant role in the adoption of section 524(g) If asbestos defendant-debtors are unable to free themselves of liability to unknown future claimants, they are unlikely to satisfy 11 U.S.C. 1129(a)(11) (2006). This section requires a finding that the debtor s emergence from bankruptcy is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor in order for the court to confirm the plan. Id. Although this standard is not high in practice, the failure to resolve this unknown future asbestos liability has historically raised sufficient doubt concerning the debtor s risk of insolvency post-confirmation to preclude confirmation. See, e.g., In re UNR Indus., Inc., 725 F.2d 1111, 1119 (7th Cir. 1984); In re Johns-Manville Corp., 36 B.R. 743, 757 (Bankr. S.D.N.Y. 1984). 28. See Mark D. Plevin et al., The Future Claims Representative in Prepackaged Asbestos Bankruptcies: Conflicts of Interest, Strange Alliances, and Unfamiliar Duties for Burdened Bankruptcy Courts, 62 N.Y.U. ANN. SURV. AM. L. 271, 277 (2006) (summarizing the Johns-Manville approach). 29. Brown, supra note 1, at 853 ( The legal foundations for the trustinjunction mechanism in Manville and other early cases the court s equitable authority and largely unsettled interpretations of key provisions of the Code were, at best, unstable. ) CONG. REC. H. 10, (daily ed. Oct. 4, 1994) (noting lingering uncertainty over the legal foundations of the bankruptcy trust injunction approach); Jeld-Wen, Inc. v. Van Brunt (In re Grossman s Inc.), 607 F.3d 114, 126 (3d Cir. 2010) (en banc) ( The Manville Trust was the basis for Congress effort to deal with the problem of asbestos claims on a national basis, which it did by enacting 524(g) of the Bankruptcy Code as part of the Bankruptcy Reform Act of ) (internal citations omitted).

8 544 BUFFALO LAW REVIEW [Vol. 61 B. The Section 524(g) Bankruptcy Process Consistent with its origins, the basic purposes of section 524(g) are to preserve the going concern value of asbestos defendant-debtors, provide legitimate victims with prompt compensation, and afford similar current and future victims with substantially similar compensation. 31 As Judge Fitzgerald, who has presided over several asbestos-related bankruptcies, recently observed: Ultimately, what Congress was attempting to do with 524(g) was to ensure that everyone unfortunate enough to contract asbestos-related illnesses as a result of exposure to a bankruptcy debtor s products, thereby becoming entitled to compensation from that debtor, be subject to substantially the same treatment in bankruptcy. Thus, Congress decided that whether one is currently a victim of such an illness or whether one will not fall ill for many more years, for bankruptcy-related purposes, a victim s compensation should not depend on how quickly he or she manifests illness. 32 To that end, section 524(g) seeks to provide future victims an independent voice in the proceedings and requires a finding that the proposed plan and trust are fair and equitable before issuing a channeling injunction. Among other things, section 524(g) requires: The appointment of a legal representative to speak on behalf of those who will assert asbestos personal injury demands in the future; 33 A judicial finding that channeling the liabilities of the parties responsible for the plaintiffs injuries to the trust is fair and equitable in light of the responsible parties contributions to the trust; 34 [R]easonable assurance that the trust will value, and be in a financial position to pay, present claims 31. In re Plant Insulation Co., 469 B.R. 843, 859 (Bankr. N.D. Cal. 2012) ( Congress had three purposes in enacting section 524(g): equal treatment of present and future asbestos claimants; preservation of going-concern value; and prompt payment of meritorious asbestos claims. ). 32. In re Flintkote Co., No (JFK), 2012 Bankr. LEXIS 5888, at *69-70 (Bankr. D. Del. Dec. 21, 2012) (internal citations omitted) U.S.C. 524(g)(4)(B)(i) (2006) U.S.C. 524(g)(4)(B)(ii).

9 2013] BANKRUPTCY TRUSTS 545 and future demands that involve similar claims in substantially the same manner; 35 and The approval of at least 75% of current asbestos claimants entitled to vote on the plan. 36 Collectively, these requirements were intended to protect future claimants interests by providing them with an independent voice during the proceedings, demanding specific judicial findings concerning questions that affect their interests, and aligning their interests with the current claimants, who must overwhelmingly support the plan. 37 Assuming these and the other conditions of section 524(g) are satisfied, the bankruptcy court may confirm the plan, and the federal district court is authorized to issue an injunction channeling all current and future asbestos liability against the debtor to the trust. 1. Pre-Petition. a. The Impact of Co-Defendant Bankruptcies. As in most complex Chapter 11 cases, events that precede the filing of the bankruptcy petition play a critical role in shaping an asbestos bankruptcy. In these cases, debtors today most often argue that their bankruptcies are driven less by their relative culpability for asbestos personal injuries than the departure of substantially all of the firsttier asbestos defendants from the tort system. 38 These defendants, who previously defended only a few asbestos cases at any given point in time, were suddenly named in thousands of cases as other defendants filed bankruptcy and established bankruptcy trusts. 39 Thus, the bankruptcy of past defendants has contributed to the increase in bankruptcy filings by other defendants today, and today s bankruptcy filings are likely to contribute to future U.S.C. 524(g)(2)(B)(ii)(V) U.S.C. 524(g)(2)(B)(ii)(IV)(bb). 37. See Brown, supra note 1, at LLOYD DIXON ET AL., RAND INST. CIV. JUST., ASBESTOS BANKRUPTCY TRUSTS: AN OVERVIEW OF TRUST STRUCTURE AND ACTIVITY WITH DETAILED REPORTS ON THE LARGEST TRUSTS 1-3 (2010) [hereinafter 2010 RAND REPORT]. 39. Id. at 8.

10 546 BUFFALO LAW REVIEW [Vol. 61 bankruptcy filings by other defendants with modest roles in the asbestos industry. 40 For example, in the Specialty Products Holding Corp. bankruptcy, the debtors argue that they were named as defendants in 107 mesothelioma cases from 1980 to 1999, with plaintiffs receiving settlements from the debtors in just forty-one of these cases. 41 The debtors contend that this reflects their actual role in the broader asbestos industry because they sold asbestos-containing products for a relatively brief period (six years), and these products collectively comprised roughly 0.02% of the asbestos-containing products sold during that time. 42 As other defendants entered bankruptcy, however, plaintiffs increasingly named the debtors as defendants in these cases. By the time they entered bankruptcy in 2010, the debtors were being named in roughly half of all new mesothelioma cases filed in the United States each year. 43 Thus, as with their former co-defendants, these new debtors commenced bankruptcy to obtain peace from ongoing asbestos litigation. b. Pre-Petition Bankruptcy Planning and Negotiations. Once a company chooses to pursue an asbestos bankruptcy, it will generally take one of two tracks: a consensual filing or a contested filing. 44 In consensual cases, the debtor/defendant will negotiate with one or more leading asbestos plaintiffs lawyers and attempt to shape the basic terms of a global bankruptcy settlement. 45 Upon consultation with lead counsel for plaintiffs, the debtor may also select and hire someone to serve as the legal representative for future 40. Patrick M. Hanlon & Anne Smetak, Asbestos Changes, 62 N.Y.U. ANN. SURV. AM. L. 525, 556 (2006) ( The sudden collapse of Owens Corning caused a sharp reaction on Wall Street that made capital impossible to come by for what were now seen as asbestos-tainted companies. This reaction, in turn, pushed other companies over the edge. Armstrong World Industries filed for bankruptcy protection in December 2000, followed in 2001 by G-I Holdings (GAF), USG, W.R. Grace, Federal Mogul (Turner & Newall) and a number of less prominent companies. ). 41. Transcript of Hearing, In re Specialty Products Holding Corp., No (JKF), at 31 (Jan. 7, 2013). 42. Id. at Id. at RAND REPORT, supra note 38, at Brown, supra note 1, at

11 2013] BANKRUPTCY TRUSTS 547 victims. 46 Collectively, these parties will attempt to iron out a plan of action for the bankruptcy case, the basic terms of any resulting bankruptcy trust, and identify and resolve potential obstacles to establishing the trust prior to the commencement of the bankruptcy case. 47 By contrast, in a contested filing, the debtors typically file without any such agreement or understanding and focus their energies on reducing their ultimate contributions to the resulting bankruptcy trust during the bankruptcy case. 2. Post-Petition Estimation and Planning. Following the commencement of the bankruptcy case, the United States Trustee ordinarily appoints an official committee of asbestos creditors, and the bankruptcy court appoints an official legal representative for future victims. 48 In consensual filings, the attorneys chosen for the asbestos committee may be the same lawyers who negotiated with the debtor pre-petition. Likewise, debtors typically request the appointment of the legal representative who served in this role pre-petition, and bankruptcy courts usually make this appointment with little fanfare. 49 Many of the plaintiffs lawyers who serve on official asbestos claimants committees, the lawyers who represent the committees, debtors counsel, the legal representatives and the judge are repeat players across asbestos bankruptcy cases. 50 Co-defendants do not typically have standing in these cases, and their interests in preserving current or future contribution or other rights are not advanced by the legal representative or otherwise. 51 Once the committee and futures representative appointments are finalized, the focus of an asbestos bankruptcy case is resolving the issues necessary to establish and fund the trust. Among other things, this includes an estimation of the debtor s aggregate liability to current and 46. Id. at RAND REPORT, supra note 38, at Tung, supra note 25, at 48, See Brown, supra note 1, at For example, more than a dozen of the largest asbestos bankruptcies filed since 2000 have been overseen by Bankruptcy Judge Judith K. Fitzgerald, either in her home court in Pennsylvania or as a visiting judge in Delaware. 51. In re ACandS, Inc., 462 B.R. 88 (Bankr. D. Del. 2011) (explaining that a co-defendant lacks standing to intervene in another asbestos defendant s bankruptcy case).

12 548 BUFFALO LAW REVIEW [Vol. 61 future asbestos victims, funding the trust through contributions from the debtor and other responsible parties, finalizing the trust distribution procedures and trust governance agreements, and establishing a process for voting on the proposed plan of reorganization. 52 Estimation the process for determining the portion of the estate s assets that will be devoted to funding the trust is often among the most hotly contested proceedings in an asbestos bankruptcy. Although courts generally allow discovery concerning a debtor s aggregate liability, 53 they rarely allow significant inquiry into the merits of individual asbestos claims asserted against the debtor. Under 28 U.S.C. 157(b)(2)(B), bankruptcy judges are not authorized to allow or disallow personal injury tort and wrongful death claims against the estate. 54 This section further provides that individual claims cannot be estimated for allowance purposes. 55 Thus, estimation disputes tend to involve a review of the debtor s settlement history and various arguments suggesting that this history may over or understate the debtor s legal liability to asbestos personal injury claimants. 56 In most cases, estimation proceedings are valuable more as a mechanism for encouraging the parties to reach a consensual estimate of the debtors aggregate long-term asbestos liability than in fixing that liability directly Tung, supra note 25, at Id. at Under 28 U.S.C. 157(b)(2)(B) (2006), bankruptcy courts may not oversee the liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims against the estate for purposes of distribution in a case under title 11. Rather, these matters may be heard in the district court in which the bankruptcy case is pending or in which the claim arose. 28 U.S.C. 157(b)(5) U.S.C. 157(b)(2)(B). 56. See generally Philip Bentley & David Blabey Jr., Asbestos Estimation in Today s Bankruptcies: The Central Importance of the New Trusts, 26 MEALEY S LITIG. REPT.: ASBESTOS 1 (Jan. 18, 2012). 57. Ultimately, trust funding should be resolved by settlement regardless of what happens at the estimation hearing. If the debtor obtains a favorable estimation and proposes funding the trust up to or even in excess of this estimated amount, the plan will still fail without the support of 75% of the plaintiffs. If the estimated liability is too high, the debtor may not be able to fashion a plan that is acceptable to other creditor constituencies. Accord Frances McGovern, Section 524(g) Without Compromise, 31 PEPP. L. REV. 233, 244 (2004)

13 2013] BANKRUPTCY TRUSTS 549 During this time, the plan proponents will also finalize negotiations concerning the contributions necessary to fund the trust. Settlements with insurers, affiliates, and others with potential financial responsibility for satisfying the debtor s liability to asbestos victims must be submitted and approved by the bankruptcy court. 58 At the same time, coverage litigation with non-settling insurers may proceed on a parallel track in state court and, at times, continues long after plan confirmation. 3. Plan Confirmation. As in other aggregative proceedings against a common fund, bankruptcy proceedings must balance individual rights against collective interests. If individual creditors can block a reorganization that promises to increase the assets available for distribution to creditors as a whole, opportunistic creditors may attempt to withhold their support in order to increase their individual recoveries. 59 This potential, in turn, may ultimately preclude the debtor s restructuring as more and more individual creditors seek holdout premiums for their claims. 60 Conversely, empowering plan proponents to force individual creditors to accept the majority s preference may undermine the legitimate interests of individual creditors; powerful creditors controlling large debts may skew the vote to favor certain classes of claims and force weaker creditors to accept less than they would receive in any liquidation of the debtor s estate. 61 The task for bankruptcy law and procedure is to not only overcome the collective action problem but also provide for an equitable distribution to creditors according to the value and priority of their claims. (discussing difficulty in balancing plaintiffs and other creditors interests). In either case, litigation over the estimate may linger on appeal and delay confirmation to the detriment of the estate and its creditors. To that end, although estimation may technically provide a liability figure that might be controlling as far as plan confirmation is concerned, most of the parties ultimately have a shared interest in settlement. 58. FED. R. BANKR. P See Stephen J. Lubben, Credit Derivatives and the Future of Chapter 11, 81 AM. BANKR. L.J. 405, 428 (2007). 60. Robert K. Rasmussen & Randall S. Thomas, Timing Matters: Promoting Forum Shopping by Insolvent Corporations, 94 NW. U. L. REV. 1357, 1374 (2000) (noting that the ability to avoid the holdout problem through cramdown is a significant benefit of the bankruptcy process). 61. Lubben, supra note 59, at 428.

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